Bill 20 — Second Session, 24Th Legislature, 47 Elizabeth Ii Th E Legisla Tive A Ssembly of A Lberta Bill 20 Fair Trading Act (Legislature 24, Session 2)

L24 S2 973

Alberta — Bills

1998 BILL 20 Second Session, 24th Legislature, 47 Elizabeth II TH E LEGISLA TIVE A SSEMBLY OF A LBERTA BILL 20 FAIR TRADING ACT MR. DUCH A RME First Reading Second Reading Committee of the Whole Third Reading Royal A ssent

Bill 20 Mr. Ducharme BILL 20 1998 FAIR TRADING ACT (Assented to , 1998) Table of Contents

Interpretation 1

Part 1 General Principles A ct prevails 2 Other rights unaffected 3

Interpretation of documents 4

Part 2 Unfair and Negative Option Practices Division 1 Unfair Practices A pplication 5 Unfair practices 6 Unfair practices prohibited 7 Time of occurrence 8 A dvertising 9 Trust accounts 10 Information in representations 11 Regulations 12 Division 2 Civil Remedies A gainst Suppliers Court action by consumer 13 Provincial Court 14 A ctions by the Director on behalf of consumers 15 A rbitration 16 Court action by consumer organizations 17 Director to be notified 18 A dvertisement of judicial decision 19 1

Division 3 Negative Option Practices Definition 20 A pplication 21 No consumer liability 22 Negative option practices prohibited 23

Part 3 Cancellation of Direct Sales Contracts and Time Share Contracts

Definitions 24 A pplication 25 Division 1 Direct Sales Contracts Salesperson’s representations 26 A bsolute cancellation right 27 Extended cancellation in certain circumstances 28 Method of cancellation 29 Effect of cancellation of contract 30 Responsibilities on cancellation 31 Consumer’s right to retain goods 32 Recovery of refund and trade-in allowance 33 Proceeds of bond 34 Contents of sales contract 35 Regulations 36 Division 2 Time Share Contracts A bsolute cancellation right 37 Method of cancellation 38 Responsibilities on cancellation 39 Recovery of refund 40 Regulations 41

Part 4 Marketing Through Electronic Media Regulations 42

Part 5 Credit and Personal Reports

Definitions 43 Furnishing reports 44 Contents of reports 45 Disclosure to individual 46 Explanation by individual 47 2

Correction of errors 48 False information 49 Civil remedy 50 Regulations 51

Part 6 Wage A ssignments

Definitions 52 A ssignments 53

Part 7 Fees Charged by Loan Brokers Charging and collecting fees 54

Part 8 Consignment Sales, Mobile H omes and Motor Fuel Consignment sales 55 Mobile homes 56 Motor fuel 57

Part 9 Cost of Credit Disclosure Division 1

Interpretation and A pplication

Definitions 58 Determination of cost of credit 59 A pplication 60 Division 2 Disclosure Definition 61 Requirement to disclose 62 Form of disclosure statements 63 Time at which disclosure statement to be delivered 64 Delivery of disclosure statements 65 Fees, Charges and Optional Services Required insurance 66 Cancellation of optional services 67 Prepayment of non-mortgage credit 68 Default charges 69 Invitation to defer payment 70 A cceleration clauses 71 3

Credit A rranged by Loan Brokers Non-business credit grantors 72 Business credit grantors 73 Division 3 Fixed Credit General A pplication 74 Credit sales 75 A dvertising for fixed credit 76 Disclosure Statements Initial disclosure statement for fixed credit 77 Changes in interest rate 78 Disclosure regarding amendments 79 Disclosure where mortgage loan renewed 80 Renewal of non-mortgage loan 81 Division 4 Open Credit General A pplication 82 A dvertising for open credit 83 Initial disclosure statement 84 Statement of account 85 Credit Cards No unsolicited credit cards 86 A pplication for credit card 87 A dditional disclosure for credit card 88 Limitation of liability 89 Division 5 Leases of Goods

Definitions 90 A pplication of Division 91 A dvertisements 92 Disclosure statement for lease 93 Residual obligation leases 94 4

Division 6 Compliance

Interpretation 95 Recovery of payments and compensation 96 Inconsistency between disclosure statement and contract 97 Statutory damages 98 Exemplary damages 99 A ssignee 100 Division 7 Regulations Regulations 101

Part 10 Designated Trades and Businesses

Definitions 102 A pplication of

Part 103 Licence required - designated businesses 104 Regulations 105 Delegation to regulatory boards 106 Establishment of fund by regulatory board 107 Codes respecting competitive practices 108 Compliance with code 109 Municipal licences 110

Part 11 Collection Practices

Definitions 111 Exemptions 112 Licence required 113 Suspension and cancellation of licence 114 Receipts 115 Statement of account 116 A udit 117 Prohibited practices 118 Withdrawal of accounts 119 Regulations 120

Part 12 Public A uctions

Definitions 121 A pplication 122 Licence required 123 Conditions of sale 124 A nnouncements by auctioneer 125 Removal of goods purchased 126 Statement by owner 127 Regulations 128 5

Part 13 Licensing Definition 129 A pplication for licence 130 Refusal, suspension, cancellation, terms 131 Notice 132 Order against agents and others 133 Security 134 Term of licence 135 Duty to maintain records 136 Trust accounts 137 Notification of changes 138 A ppeal 139 Regulations 140 Registration 141

Part 14 Remedies and Enforcement Definition 142 Dispute Resolution Dispute resolution 143 Trust A ccounts Regulations 144 Inspections and Investigations Identification of inspectors 145 Inspection 146 Order compelling assistance in inspections 147 Investigation 148 Order compelling assistance in investigations 149 Special circumstances 150 Disclosing results of investigation 151 Protecting property 152 Undertakings Supplier’s undertakings 153 Change in undertaking by Director 154 Change in undertaking by Court 155 Effect of varying or cancelling an undertaking 156 Injunctions and Compliance Orders Injunction 157 Director’s order 158 6

Enforcement of Director’s order 159 Court actions by the Director 160 A dvertisement of judicial decision 161 Offences Non-compliance with A ct 162 Non-compliance with regulations 163 Non-compliance with orders, etc. 164 Penalty 165 Corporations and partnerships 166 Vicarious liability 167 Time limit for prosecution 168 Restitution 169 Evidence Carrying on business 170 Loan brokers 171 Status of licensee and nature of substances, etc. 172 Copies 173

Part 15 A dministration and A ppeals A dministration Director and inspectors 174 Delegation 175 Co-operative enforcement 176 Government’s costs 177 Service of documents 178 Forms 179 A ppeals A ppeal 180 Effect of appeal 181 Court of Queen’s Bench 182 Powers of appeal board 183 Regulations 184

Part 16 Transitional Provisions, Consequential A mendments, Repeals and Coming Into Force Division 1 Transition from former A cts to this A ct

Definitions 185 Regulations 186 Director 187 Consumer transactions and unfair practices 188 7

Credit agreements and leases 189 A ppeals 190 Claims against security 191 Division 2 Consequential A mendments, Repeals and Coming into Force Consequential A mendments Consequential amendments 192-197 Repeals Repeals 198 Coming into Force Coming into force 199 H ER MA JESTY, by and with the advice and consent of the Legislative A ssembly of A lberta, enacts as follows:

Interpretation 1(1) In this A ct, (a) “advertiser” means a person who prints, publishes, distributes, broadcasts or telecasts other people’s advertisements; (b) “consumer” means, subject to the regulations under subsection (2), an individual who (

i) receives or has the right to receive goods or services from a supplier as a result of a purchase, lease, gift, contest or other arrangement, but does not include an individual who intends to sell the goods after receiving them, (ii) has a legal obligation to compensate a supplier for goods that have been or are to be supplied to another individual and the other individual does not intend to sell the goods after receiving them, or (iii) has a legal obligation to compensate a supplier for services that have been or are to be supplied to another individual; (c) “consumer transaction” means, subject to the regulations under subsection (2), 8

(

i) the supply of goods or services by a supplier to a consumer as a result of a purchase, lease, gift, contest or other arrangement, or (ii) an agreement between a supplier and a consumer, as a result of a purchase, lease, gift, contest or other arrangement, in which the supplier is to supply goods or services to the consumer or to another consumer specified in the agreement; (d) “Director” means the Director of Fair Trading appointed under

section 174; (e) “goods”, except in Parts 9 and 12, means, subject to the regulations under subsection (2), (

i) any personal property that is used or ordinarily used primarily for personal, family or household purposes, (ii) a voucher, or (iii) a new residential dwelling whether or not the dwelling is affixed to land; (f) “inspector” means an inspector appointed under

section 174; (g) “loan broker” means a person who, for compensation, assists a person in obtaining credit; (h) “licence” means a licence issued or renewed under this A ct; (i) “Minister” means the Minister determined under

section 16 of the Government Organization Act as the Minister responsible for this A ct; (j) “regulatory board” means a regulatory board established in accordance with the regulations in respect of a designated business as defined in

Part 10; (k) “services”, except in

Part 9, means, subject to the regulations under subsection (2), any service offered or provided primarily for personal, family or household purposes, including (

i) a service offered or provided that involves the addition to or maintenance, repair or alteration of goods or any residential dwelling, 9

(ii) a membership in any club or organization if the club or organization is a business formed to make a profit for its owners, and (iii) the right to use property under a time share contract; (l) “supplier” means, subject to the regulations under subsection (2), a person who, in the course of the person’s business, (

i) provides goods or services to consumers, (ii) manufactures, assembles or produces goods, (iii) promotes the use or purchase of goods or services, or (iv) receives or is entitled to receive money or other consideration as a result of the provision of goods or services to consumers, and includes any salesperson, employee, representative or agent of the person, but does not include an advertiser; (m) “time share contract” means a contract in which an individual acquires the right to use any type of real or personal property that can be used as accommodation, whether or not it is located in A lberta, (

i) for a period of time of less than one year during an interval specified in the contract, and (ii) as part of a plan that provides for the use of the property to circulate among persons participating in the plan; (n) “voucher” means any document that purports to give the holder of the document the right to obtain goods or a service or the right to obtain goods or a service at a discounted or reduced price.

(2) The Minister may make regulations that restrict or broaden the

definitions of consumer, consumer transaction, goods, services and supplier, and the restricting or broadening of the

definitions may apply to one or more Parts of this A ct and to one or more regulations under this A ct. 10

PART 1 GENERAL PRINCIPLES A ct p re va ils 2(1) A ny waiver or release by a person of the person’s rights, benefits or protections under this A ct or the regulations is void. (2) Subsection (1) does not apply to a release made by a person in the settlement of a dispute. O ther rights unaffected 3 None of the rights or remedies under this A ct or the regulations restrict, limit or derogate from any legal, equitable or statutory right or remedy that the following may have: (

a) a consumer; (

b) a person dealing with a reporting agency as defined in

Part 5, licensee or loan broker; (

c) a borrower or lessee to which

Part 9 applies. In te rp re ta tio n of d o cu m e n ts 4 If a consumer and a supplier enter into a consumer transaction, or an individual enters into a contract with a licensee and the licensee agrees to supply something to the individual in the normal course of the licensee’s business, and (

a) all or any part of the transaction or contract is evidenced by a document provided by the supplier or licensee, and (

b) a provision of the document is ambiguous, the provision must be interpreted against the supplier or licensee, as the case may be.

PART 2 UNFAIR AND NEGATIVE OPTION PRACTICES Division 1 Unfair Practices A pplication 5 This A ct applies to the following unfair practices: (

a) an unfair practice in which the supplier or consumer is a resident of A lberta; 11

(

b) an unfair practice involving a consumer transaction in which the offer or acceptance is made in or is sent from A lberta; (

c) an unfair practice made or received in A lberta involving a supplier’s representative; (

d) an unfair practice specified in the regulations. U n fa ir practices 6(1) In this section, “material fact” means any information that would reasonably be expected to affect the decision of a consumer to enter into a consumer transaction.

(2) It is an unfair practice for a supplier, in a consumer transaction or a proposed consumer transaction, (

a) to exert undue pressure or influence on the consumer to enter into the consumer transaction; (

b) to take advantage of the consumer as a result of the consumer’s inability to understand the character, nature, language or effect of the consumer transaction or any matter related to the transaction; (

c) to use exaggeration, innuendo or ambiguity as to a material fact with respect to the consumer transaction; (

d) to charge a price for goods or services that grossly exceeds the price at which similar goods or services are readily available without informing the consumer of the difference in price and the reason for the difference; (

e) to charge a price for goods or services that is materially higher than the estimate given for those goods or services unless the consumer has expressly consented to the higher price before the goods or services are supplied.

(3) It is an unfair practice for a supplier (

a) to enter into a consumer transaction if the supplier knows or ought to know that the consumer is unable to receive any reasonable benefit from the goods or services; (

b) to enter into a consumer transaction if the supplier knows or ought to know that there is no reasonable probability that the consumer is able to pay the full price for the goods or services; (

c) to include in a consumer transaction terms or conditions that are harsh, oppressive or excessively one-sided; 12

(

d) to make a representation that a consumer transaction involves or does not involve rights, remedies or obligations that is different from the fact.

(4) Without limiting subsections (2) and (3), the following are unfair practices if they are directed at one or more potential consumers: (

a) a supplier’s doing or saying anything that might reasonably deceive or mislead a consumer; (

b) a supplier’s misleading statement of opinion if the consumer is likely to rely on that opinion to the consumer’s disadvantage; (

c) a supplier’s representation that goods or services have sponsorship, approval, performance, characteristics, accessories, ingredients, quantities, components, uses, benefits or other attributes that they do not have; (

d) a supplier’s representation that the supplier has a sponsorship, approval, status, qualification, affiliation or connection that the supplier does not have; (

e) a supplier’s representation that goods or services are of a particular standard, quality, grade, style or model if they are not; (

f) a supplier’s representation that goods have or have not been used to an extent that is different from the fact; (

g) a supplier’s representation that goods are new if they are used, deteriorated, altered or reconditioned; (

h) a supplier’s representation that goods have or do not have a particular prior history or usage if that is different from the fact; (

i) a supplier’s representation that goods or services are available for a reason that is different from the fact; (

j) a supplier’s representation that goods or services have been made available in accordance with a previous representation if they have not; (

k) a supplier’s representation that the supplier can supply goods or services if the supplier cannot; (

l) a supplier’s representation involving a voucher that another supplier will provide goods or a service or will provide goods or a service at a discounted or reduced price if the 13

first-mentioned supplier knows or ought to know that the second-mentioned supplier will not; (

m) a supplier’s representation that goods are available in a particular quantity if they are not; (

n) a supplier’s representation that goods or services will be supplied within a stated period if the supplier knows or ought to know that they will not; (

o) a supplier’s representation that a specific price benefit or advantage exists if it does not; (

p) a supplier’s representation that a part, replacement, repair or adjustment is needed or desirable if it is not; (

q) a supplier’s representation that the supplier is requesting information, conducting a survey or making a solicitation for a particular purpose if that is not the case; (

r) a supplier’s representation that a person does or does not have the authority to negotiate the terms of a consumer transaction if the representation is different from the fact; (

s) when the price of any part of goods or services is given in any representation by a supplier, (

i) failure to give the total price of the goods or services, or (ii) giving less prominence to the total price of the goods or services than to the price of the part; (

t) when the amount of any instalment to be paid in respect of goods or services is given in any representation by a supplier, (

i) failure to give the total price of the goods or services, or (ii) giving less prominence to the total price of the goods and services than to the amount of the instalment; (

u) a supplier’s giving an estimate of the price of goods or services if the goods or services cannot be provided for that price; (

v) a supplier’s representation of the price of goods or services in such a way that a consumer might reasonably believe 14

that the price refers to a larger package of goods or services than is the case; (

w) a supplier’s representation that a consumer will obtain a benefit for helping the supplier to find other potential customers if it is unlikely that the consumer will obtain such a benefit; (

x) a supplier’s representation about the performance, capability or length of life of goods or services unless (

i) the representation is based on adequate and proper independent testing that was done before the representation is made, (ii) the testing substantiates the claim, and (iii) the representation accurately and fairly reflects the results of the testing; (

y) a supplier’s representation that goods or services are available at an advantageous price if reasonable quantities of them are not available at such a price, unless it is made clear that quantities are limited; (

z) a supplier’s representation that appears in an objective form such as an editorial, documentary or scientific report when the representation is primarily made to sell goods or services, unless the representation states that it is an advertisement or promotion; (aa) anything specified in the regulations. U n fa ir p ra ctice s prohibited T im e of o ccu rre n ce 7 No supplier may commit an unfair practice. 8 A n unfair practice may occur before, during or after a consumer transaction, and is an unfair practice for all the purposes of this Part even if no consumer transaction is entered into or concluded.

A d ve rtisin g 9(1) No advertiser may print, publish, distribute, broadcast or telecast a supplier’s advertisement for goods or a service if the advertisement contains an unfair practice. (2) Subsection (1) does not apply to an advertiser who prints, publishes, distributes, broadcasts or telecasts a supplier’s advertisement in good faith and in the ordinary course of business. 15

T ru st accounts 10 Every supplier must comply with the requirements respecting trust accounts established by the regulations under

section 144. In fo rm a tio n in re p re se n tations 11 If a regulation is made pursuant to

section 12(d), every supplier who makes a representation to which the regulation applies must ensure that the representation contains the information prescribed by the regulation. R egulations 12 The Minister may make regulations (

a) specifying unfair practices to which this Part applies; (

b) specifying activities or things to be unfair practices; (

c) respecting the records to be maintained by an advertiser, including where the records are to be maintained and the time period for which they must be maintained; (

d) prescribing information that must be given in a representation made by a supplier or class of supplier in respect of any consumer transaction or class of consumer transaction. Division 2 Civil Remedies Against Suppliers C o u rt a ctio n by consum er 13(1) When a consumer (

a) has entered into a consumer transaction, and (

b) in respect of that consumer transaction, has suffered damage or loss due to an unfair practice, that consumer may commence an action in the Court of Queen’s Bench for relief from that damage or loss against any supplier who engaged in or acquiesced in the unfair practice that caused that damage or loss.

(2) In an action under this section, the Court of Queen’s Bench may (

a) declare that the practice is an unfair practice; (

b) award damages for damage or loss suffered; (

c) award punitive or exemplary damages; (

d) make an order for 16

(

i) specific performance of the consumer transaction, (ii) restitution of property or funds, or (iii) rescission of the consumer transaction; (

e) grant an order in the nature of an injunction restraining the supplier from engaging in the unfair practice; (

f) make any directions and grant any other relief the Court considers proper.

(3) In determining whether to grant any relief under this

section and the nature and extent of the relief, the Court of Queen’s Bench must consider whether or not the consumer made a reasonable effort to minimize any damage resulting from the unfair practice and to resolve the dispute with the supplier before commencing the action in the Court.

(4) The Court of Queen’s Bench may award party and party costs and solicitor and client costs or either of them. P ro vin cia l C ourt 14(1) Subject to the jurisdiction of the Provincial Court, an action under

section 13(1) may be commenced under

Part 4 of the Provincial Court Act.

(2) Section 18 does not apply to an action commenced under this section. A ctions by the D ire cto r on behalf of co n su m e rs 15(1) Subject to this section, the Director may, when in the opinion of the Director it is in the public interest to do so, (

a) commence and maintain an action under

section 13 if a consumer has a cause of action under that section, (

b) maintain an action under

section 13 after it has been commenced, or (

c) bring and maintain an appeal of an action under

section 13.

(2) When, pursuant to subsection (1), the Director brings or maintains an action or an appeal under

section 13, the Director must do so in the name of and on behalf of that consumer, and the Director is entitled to take the same steps in and have the same control over the action or appeal, including the right to settle the action or appeal or any part of it, that the consumer would have had in respect of that action or appeal. 17

(3) The Director may not bring or maintain an action or an appeal under this

section without first obtaining the written consent of the consumer in whose name the action is brought.

(4) On the consumer’s giving written consent, the Director may, without consulting or seeking any further consent of the consumer, conduct the action or appeal in any manner the Director considers appropriate.

(5) In an action or appeal commenced, brought or maintained by the Director pursuant to subsection (1), (

a) any money recovered, excluding costs of the action or appeal, must be paid to the consumer; (

b) any money payable by the consumer, excluding costs of the action or appeal, is not recoverable from the Director or the Government; (

c) the costs of the action or appeal are to be paid to or borne by the Government.

(6) Nothing in this

section abrogates or restricts any right of set-off that a person has or may have against a consumer on whose behalf the Director is acting under this section.

(7) When the Director, while acting on behalf of a consumer under this section, releases a supplier from a liability or an obligation arising out of the cause of action, that release extinguishes the claim to the liability or obligation referred to in that release that the consumer may have against that supplier.

A rb itra tio n 16 Despite any provision of this A ct, neither a consumer nor the Director may commence or maintain an action or appeal under sections 13 to 15 if the consumer’s cause of action under those sections is based on a matter that the consumer has agreed in writing to submit to arbitration and the arbitration agreement governing the arbitration has been approved by the Minister.

C o u rt a ctio n by consum er o rg a n iza tio n s 17(1) A consumer organization or a group of consumers may commence and maintain an action in the Court of Queen’s Bench against a supplier who is engaging in or has engaged in an unfair practice.

(2) In an action under this section, the Court of Queen’s Bench may (

a) make an order declaring that the act or practice is an unfair practice, and 18

(

b) grant an order in the nature of an injunction restraining the supplier from engaging in the unfair practice.

(3) A consumer organization bringing an action under this

section is not required to have an interest in or be affected by the matter in issue in order to commence and maintain the action.

(4) When an action is commenced under this section, the Court of Queen’s Bench may order the consumer organization that commenced the action to furnish security for costs in any amount the Court considers proper. D irector to be notified 18(1) A party that commences an action under

section 13 or 17 must serve the Director with a copy of the statement of claim.

(2) The party commencing the action may not take the next step in the action until the Director has been served under subsection (1).

(3) On being served under subsection (1), the Director may, on notice to all parties to the action, make application to the Court to be added as a party and on the making of the order the Director may take any of the steps under

section 15. A dvertisem ent of judicial decision 19(1) When a court grants relief under

section 13, 15 or 17, the court may make a further order requiring the supplier to advertise to the public the particulars of any order, judgment or other relief granted by the court.

(2) In making an order under subsection (1), the court may prescribe (

a) the methods of making the advertisement so that it will assure prompt and reasonable communication to consumers; (

b) the contents or form or both of the advertisement; (

c) the number of times the advertisement is to be made; (

d) any other conditions the court considers proper. Division 3 Negative Option Practices D e fin itio n 20 In this Division, “negative option practice” means a consumer transaction in which a supplier 19

(

a) provides goods or services to a consumer, including the enhancement of a service that a consumer is already receiving, that the consumer did not request, and (

b) requires the consumer to pay for the goods or services unless the consumer informs the supplier that the consumer does not want the goods or services. A pplication 21 This Division applies to a negative option practice if (

a) the supplier or consumer is a resident of A lberta, or (

b) the goods or services are provided from or received in A lberta. N o consum er liability 22 A consumer is not liable to pay for any goods or services received under a negative option practice unless the consumer agrees in writing to pay for the goods or services. N egative option practices prohibited 23 No supplier may supply goods or services to a consumer through a negative option practice.

PART 3 CANCELLATION OF DIRECT SALES CONTRACTS AND TIME SHARE CONTRACTS D efinitions 24 In this Part, (a) “direct sales contract” means a consumer transaction that is a contract, other than a time share contract, in which (

i) the consideration for the goods or services exceeds an amount specified in the regulations, and (ii) the contract is negotiated or concluded in person at a place other than the supplier’s place of business or at a place other than a market place, trade fair, agricultural fair or exhibition, and includes an offer to buy goods or services or to enter into a contract mentioned in subclause (

i) or (ii); (b) “trade-in allowance” means the greater of (

i) the price or value of the consumer’s goods as set out in a trade-in arrangement, or 20

(ii) the market value of the consumer’s goods when taken in trade under a trade-in arrangement; (c) “trade-in arrangement” means an agreement or arrangement, contained in a direct sales contract or forming the whole or part of a related agreement, under which the consumer sells or agrees to sell the consumer’s own goods to the supplier or any other person and the goods are accepted as the whole or part of the consideration under the direct sales contract. A p p lica tio n 25(1) This Part applies to the following direct sales contracts and time share contracts: (

a) a contract in which the supplier or consumer is a resident of A lberta; (

b) a contract in which the offer or acceptance is made in or is sent from A lberta; (

c) a contract specified in the regulations.

(2) This Part or a Division of this Part does not apply to classes of business specified in the regulations.

(3) The Minister may make regulations for the purposes of subsections (1)(

c) and (2). Division 1 Direct Sales Contracts S a le sp e rso n 's re p re se n tations 26 A n oral or written representation, statement or undertaking, whether constituting a condition or warranty or not, made to a consumer by a salesperson with respect to goods covered by a direct sales contract or a related sale is deemed to have been made by the salesperson as agent of the supplier, but nothing in this

section exonerates any person from any liability to which the person would be subject apart from this section. A bsolute ca n ce lla tio n right 27 A consumer may, without any reason, cancel a direct sales contract at any time from the date the sales contract is entered into until, subject to the regulations, 10 days after the consumer receives a copy of the written sales contract. 21

E xte n d e d cancellation in certain circum stances 28(1) In addition to the right of cancellation under

section 27, a consumer may cancel a direct sales contract in the circumstances set out in this section.

(2) A consumer may cancel a direct sales contract within one year of the date the sales contract is entered into, (

a) if the supplier was required to be licensed under

Part 10 and was not licensed at the time the direct sales contract was concluded, or (

b) if the direct sales contract does not include all the information required under

section 35.

(3) A consumer may cancel a direct sales contract within one year from the date the direct sales contract is entered into if the supplier (

a) does not deliver the goods within 30 days of the delivery date specified in the direct sales contract or an amended delivery date agreed on in writing by the consumer and the supplier, or (

b) does not begin the services within 30 days of the commencement date specified in the direct sales contract or an amended commencement date agreed on in writing by the consumer and the supplier.

(4) If, after the period mentioned in subsection (3) has expired, the consumer accepts delivery of the goods or the consumer authorizes the services to begin, the consumer may not cancel the direct sales contract pursuant to subsection (3).

(5) Subject to subsection (6), a consumer may cancel a direct sales contract in which the goods purchased are a voucher if, within one year from the date that the direct sales contract is entered into or within the date specified in the voucher for exercising the rights granted by the voucher, whichever occurs first, the supplier that is to provide the goods or services under the voucher or is to provide goods or services at a discounted or reduced price under the voucher (

a) refuses to do so for a reason that is not specified in the voucher, or (

b) no longer exists. (6) Subsection (5) does not apply to a direct sales contract in which the goods purchased are a voucher if the consumer has received 22

(

a) goods or services under the voucher having a value that is at least the price paid for the voucher, (

b) discounts or price reductions under the voucher having a value that is at least the price paid for the voucher, or (

c) a combination of the values referred to in clauses (

a) and (

b) that is at least the price paid for the voucher. M ethod o f cancellation 29(1) A direct sales contract is cancelled on the giving of a notice of cancellation in accordance with this section.

(2) A notice of cancellation may be expressed in any way as long as it indicates the intention of the consumer to cancel the direct sales contract.

(3) The notice of cancellation may be given by any means, including, but not limited to, personal service, registered mail, courier or telecopier or by any other method, including orally, by which the consumer can provide evidence of the date that the consumer cancelled the direct sales contract.

(4) Where the notice is given other than by personal service or orally, the notice of cancellation is deemed to be given when sent.

(5) The notice of cancellation may be sent or delivered to the supplier at the address set out in the direct sales contract or, if the consumer did not receive a copy of the direct sales contract or the address of the supplier was not set out in the direct sales contract, the consumer may send or deliver the cancellation notice (

a) to any address of the supplier on record with the Government of A lberta, (

b) to an address of the supplier known by the consumer, or (

c) to the salesperson of the supplier at an address known by the consumer.

(6) If the consumer is unable to find an address referred to in subsection (5), the consumer may send or deliver the notice to any office of the H ousing and Consumer A ffairs Division of the Department of Municipal A ffairs or to any other place designated by the regulations. E ffe ct of cancellation o f contract 30(1) A cancellation of a direct sales contract in accordance with this Division operates (

a) to cancel the direct sales contract, or 23

(

b) when the direct sales contract is an offer to buy, to withdraw the offer, as if the direct sales contract never existed.

(2) A cancellation of a direct sales contract in accordance with this Division also operates to cancel (

a) any related sale, (

b) any guarantee given in respect of money payable under the direct sales contract, and (

c) any security given by the consumer or a guarantor in respect of money payable under the direct sales contract, as if it never existed.

(3) Where credit is extended or arranged by the supplier, the credit contract is conditional on the direct sales contract whether or not the credit contract is a part of or attached to the direct sales contract, and if the direct sales contract is cancelled, that cancellation has the effect of cancelling the credit contract as if the direct sales contract had never existed. R e sp o n si b ilitie s on cancellation 31(1) In this section, (a) “authorized person” means (

i) the supplier, (ii) the person for the time being entitled to possession of the goods, or (iii) a person specified in the direct sales contract as a person to whom a notice of cancellation may be given; (b) “consumer’s premises” means the place specified in the sales contract as the consumer’s address or, if the address shown does not specifically identify that place by a municipal address, land description or other description sufficient to distinguish that place from any other, the place where the consumer actually resided at the time the sales contract was made.

(2) Within 15 days after a direct sales contract is cancelled, the supplier must refund to the consumer all money paid by the consumer and return to the consumer’s premises any trade-in or an amount equal to the trade-in allowance. 24

(3) In the case of a direct sales contract for goods, the consumer must, on receiving the refund and return of the trade-in or an amount equal to the trade-in allowance, return the goods to the supplier.

(4) Where a direct sales contract has been cancelled but the consumer solicited the services of a supplier and requested that the service be provided within 10 days from the date that the direct sales contract was entered into, the supplier is entitled to reasonable compensation for the services performed by the supplier, but the supplier’s rights under this subsection do not arise until the supplier complies with subsection (2).

(5) When a notice of cancellation is given in accordance with

section 29, the consumer must return to an authorized person goods that came into the consumer’s possession under the direct sales contract or a related sale or pre-existing contract if an authorized person gives the consumer a written request that is signed or purports to be signed by or on behalf of the supplier, but the obligation of the consumer under this subsection is subject to any lien or right to retain the goods that the consumer may have under

section 32 and the consumer’s right to enforce the lien.

(6) The consumer may (

a) return the goods to an authorized person or to a person designated for the purpose by an authorized person, at a place elsewhere than at the consumer’s premises, or (

b) return the goods at the consumer’s expense to the supplier or to a person specified in the direct sales contract as a person to whom a notice of cancellation may be given.

(7) A return of the goods in accordance with subsection (5) or (6) is deemed to be made with the consent of the supplier or, if the supplier is not entitled to possession of the goods, with the consent of the person so entitled, and operates to discharge the consumer from any obligation to retain the goods or deliver them to the person so entitled.

(8) The consumer is under an obligation to take reasonable care of goods delivered to the consumer under a direct sales contract or related agreement until (

a) the return of the goods in accordance with subsection (5) or (6), or (

b) the expiration of the period of 21 days after the giving of the notice of cancellation, 25

whichever event occurs first, and if the consumer sends the goods to the supplier or other person in accordance with subsection (6)(b), the consumer is under an obligation to take reasonable care to see that they are received by the person to whom they are sent and are not damaged in transit.

(9) A ny obligation under subsection (8) is owed to the person for the time being entitled to possession of the goods and any breach of that obligation is actionable, at the suit of that person, as a breach of statutory duty.

(10) The consumer is under no obligation under this

section to return the goods elsewhere than at the consumer’s premises.

(11) Except as provided by this section, the consumer is not under any obligation, whether arising by contract or otherwise, to take care of the goods. C onsum er’s right to re ta in goods 32 When a notice of cancellation is served in accordance with

section 29, the consumer is entitled to retain possession of goods delivered to the consumer under a direct sales contract, related sale or pre-existing contract (

a) until all money paid under the direct sales contract, related sale or pre-existing contract is refunded, and (

b) in the case of a trade-in arrangement, until either (

i) the goods delivered by the consumer under the trade-in arrangement are returned to the consumer in a condition substantially the same as when they were delivered by the consumer, or (ii) a sum equal to the trade-in allowance is paid to the consumer, and the consumer, while in possession, has a lien on those goods for any money so owing to the consumer. R ecovery o f refund a n d trade-in allow ance 33(1) If the supplier fails to refund to the consumer all money paid under the direct sales contract, any related sale and any pre-existing contract under

section 31, the consumer may recover that money from the supplier.

(2) In the case of a trade-in arrangement, unless (

a) the supplier returns the consumer’s goods to the consumer in accordance with

section 31(1), and 26

(

b) the goods are then in a condition substantially the same as when they were delivered by the consumer, the consumer may recover from the supplier an amount equal to the trade-in allowance for the goods.

(3) A n amount recoverable under subsection (1) or (2) may be recovered as a simple contract debt.

(4) When the consumer recovers an amount equal to the trade-in allowance, then, if the title of the consumer to goods delivered by the consumer under the trade-in arrangement did not pass from the consumer, the title vests in the person entitled to the title under the trade-in arrangement. P ro ce e d s of b o n d 34 When, pursuant to regulations under

Part 13, the proceeds of a security are used for the benefit of consumers who have not recovered money owing to them following the cancellation of direct sales contracts, any money paid to a consumer from the proceeds of the security is deemed to have been recovered from the supplier. C ontents of sa le s contract 35 A written direct sales contract must include (

a) the consumer’s name and address; (

b) the supplier’s name, business address, telephone number and, where applicable, fax number; (

c) where applicable, the salesperson’s name; (

d) the date and place at which the direct sales contract is entered into; (

e) a description of the goods or services, sufficient to identify them; (

f) a statement of cancellation rights that conforms with the requirements set out in the regulations; (

g) the itemized price of the goods or services, or both; (

h) the total amount of the direct sales contract; (

i) the terms of payment; (

j) in the case of a sales contract for the future delivery of goods, future provision of services or future delivery of goods together with services, the delivery date for the goods or start date for the services or both; 27

(

k) in the case of a sales contract for the future provision of services or the delivery of goods together with services, the completion date for providing the services or the goods together with services; (

l) where credit is extended, (

i) a statement of any security taken for payment, and (ii) the disclosure statement required under

Part 9; (

m) where there is a trade-in arrangement, a description of and the value of the trade-in; (

n) the signatures of the consumer and the supplier. R e g u la tio n s 36 The Minister may make regulations (

a) specifying amounts for the purposes of

section 24(a)(i); (

b) respecting the form and contents of the statement of cancellation rights that must be included in a direct sales contract and the form of the contract; (

c) designating places where notices of cancellation may be sent or delivered for the purposes of

section 29. Division 2 Time Share Contracts A bsolute cancellation right 37(1) A consumer may, without any reason, cancel a time share contract at any time from the date the contract is entered into until 7 days after the consumer receives a copy of the contract.

(2) In addition to the right of cancellation under subsection (1), a consumer may cancel a time share contract within one year of the date the contract is entered into if the time share contract does not set out (

a) the consumer’s right of cancellation under subsection (1), or (

b) the consumer’s right to receive a refund of money paid under

section 39. 28

M ethod of cancellation 38 A time share contract is cancelled on the giving of a notice of cancellation in accordance with the regulations. R e sp o n si bilities on cancellation 39(1) Within 15 days after a time share contract is cancelled, the supplier must refund to the consumer all money paid by the consumer.

(2) Where a time share contract has been cancelled and the consumer has used the property under the time share contract, the supplier is entitled to reasonable compensation for the use of the property, but the supplier’s rights under this

section do not arise until the supplier complies with subsection (1). R ecovery o f refund 40 If the supplier fails to refund to the consumer all money paid under the time share contract under

section 39, the consumer may recover the money from the supplier as a simple contract debt. R egulations 41 The Minister may make regulations (

a) respecting the form and contents of time share contracts; (

b) respecting the giving of a notice of cancellation of a time share contract, including specifying when notice is deemed to be received.

PART 4 MARKETING THROUGH ELECTRONIC MEDIA R e g u la tio n s 42(1) The Minister may make regulations respecting the marketing of goods and services through forms of electronic media, such as telephone, television or the Internet, that are specified in the regulations.

(2) Without limiting subsection (1), the Minister may make regulations (

a) specifying the forms of electronic media and the types of marketing to which the regulation applies; (

b) regulating and prohibiting specified activities involved in marketing of goods and services through electronic media; (

c) setting out the rights and remedies of consumers who enter into consumer transactions wholly or partly through a form of electronic media. 29

PART 5 CREDIT AND PERSONAL REPORTS D efinitions 43 In this Part, (a) “credit information” means information about an individual’s name, age, occupation, previous employers, place of residence, previous places of residence, marital status, spouse’s name and age, number of dependants, educational or professional qualifications, places of employment, estimated income, paying habits, outstanding debt obligations, cost of living obligations and assets; (b) “file”, when used as a noun, means all of the information pertaining to an individual that is recorded and retained by a reporting agency, regardless of the manner or form in which the information is stored; (c) “personal information” means information other than credit information about an individual’s character, reputation, health, physical or personal characteristics or mode of living or about any other matter concerning the individual; (d) “report” means a written, oral or other communication of credit information or personal information, or both, pertaining to an individual; (e) “reporting agency” means a person who (

i) furnishes reports for gain or profit or on a reciprocal non-profit basis, and (ii) is designated by the regulations. F u rn ish in g reports 44(1) A reporting agency, and an officer or employee of a reporting agency, may furnish a report to a person only in the following circumstances: (

a) if there are reasonable grounds to believe that the person intends to use the information in the report (

i) in connection with the extension of credit to or the collection of a debt from the individual to whom the report pertains, (ii) in connection with the entering into or the renewal of a tenancy agreement by the individual to whom the report pertains, 30

(iii) for employment purposes, (iv) in connection with the underwriting of insurance involving the individual to whom the report pertains, or (

v) to determine the eligibility of an individual to whom the report pertains under a law, if the information is relevant to the eligibility requirement; (

b) if there are reasonable grounds to believe that the person has a direct business requirement for information in the report as a result of a business transaction respecting the individual to whom the report pertains; (

c) if the report is furnished to the Director or an inspector, the government of Canada or of a province, a municipality in Canada or any of their agencies; (

d) if the person is the individual to whom the report pertains or if the person has the written consent of the individual to obtain the report; (

e) in response to the order of a court.

(2) No person may obtain a report from a reporting agency except in the circumstances referred to in subsection (1).

(3) Despite subsections (1) and (2), a reporting agency may sell, lease or transfer title to all or part of its files to another reporting agency. C o n te n ts o f reports 45(1) Every reporting agency must adopt all reasonable procedures to ensure accuracy and fairness in the contents of its reports.

(2) A reporting agency may include information in its reports only if (

a) the information is stored in a form capable of being provided under

section 46, (

b) the information is extracted from information appearing in files stored or collected in a repository located in Canada, regardless of whether or not the information was obtained from a source outside of Canada, (

c) the name and address of the source of the information is recorded or retained in its files, or can be readily ascertained by the individual who is the subject of the information, and 31

(

d) the information is based on the most reliable evidence reasonably available.

(3) A reporting agency must not include the following information about an individual in a report: (

a) unfavourable personal information, unless the reporting agency has corroborating evidence of the unfavourable personal information, and the corroborating evidence is noted with and accompanies the unfavourable personal information; (

b) information about actions, accounts or debts that, on their face, cannot be pursued because of the expiration of limitation periods; (

c) information about a judgment 6 years after the judgment was given, unless the creditor or the creditor’s agent confirms that the judgment remains unpaid in whole or in part, and the confirmation appears in the file; (

d) information about the bankruptcy of an individual 6 years after the date the individual was last discharged from bankruptcy, unless the individual has been bankrupt more than once; (

e) information about charges against the individual under any federal or provincial law unless the charges resulted in conviction; (

f) information about a conviction of the individual for offences against a law of any jurisdiction 6 years after the date of conviction or, where the conviction resulted in imprisonment, after the date of release or parole, and in no case may information about a conviction be reported if the individual has been granted a pardon; (

g) information given orally, unless the content of the oral report is noted in writing in the file; (

h) any other information adverse to the individual’s interest that is more than 6 years old, unless the information is voluntarily supplied by the individual to the reporting agency; (

i) information about the race, creed, colour, ancestry, ethnic origin, religion or political affiliation of an individual; (

j) information about the payment or non-payment of a lawfully imposed fine 6 years after the fine was imposed; 32

(

k) information about a court action or court proceeding 12 months after the commencement of the court action or court proceeding unless the current status of the action or proceeding has been ascertained and is included in the report; (

l) any other information prescribed by regulation. D isclosure to individual 46(1) Subject to subsections (2), (6) and (7), a reporting agency must, (

a) at the request of an individual or the individual’s representative and during normal business hours, clearly and accurately disclose to the individual or representative (

i) the nature and substance of all information in the file respecting that individual at the date of the request, (ii) the sources of its information, unless the sources are readily ascertainable, and (iii) the names of the recipients of any report respecting the individual that it has furnished within the preceding 6 months; (

b) at the request of an individual or the individual’s representative, provide copies of any written report furnished within the preceding 6 months respecting that individual or, where the report was oral, written particulars of the contents of the oral report.

(2) A reporting agency may refuse to disclose or supply information referred to in subsection (1) to an individual or the individual’s representative if (

a) the agency does not receive the fee established under the regulations, or (

b) in the case that no fee is established under the regulations, the agency does not receive a reasonable fee established by the agency.

(3) When a reporting agency makes a disclosure or provides copies or particulars under subsection (1), the reporting agency must inform the individual or the individual’s representative of the individual’s right to explain or protest any information contained in the reporting agency’s file and the manner in which an explanation or protest may be made. 33

(4) Every reporting agency must provide properly trained staff to explain to the individual any information furnished to the individual or the individual’s representative under this section.

(5) The reporting agency must permit the individual or the individual’s representative to make an abstract of any information disclosed under the section.

(6) Before disclosing an individual’s file to the individual, the reporting agency must require the individual to submit identification, and the reporting agency must (

a) disclose the file if reasonable identification is submitted, and (

b) refuse to disclose the file if reasonable identification is not provided.

(7) Before disclosing an individual’s file to the individual’s representative, the reporting agency must require the representative to submit identification and proof that the person is the individual’s representative, and the reporting agency must (

a) disclose the file if reasonable identification and proof are submitted, and (

b) refuse to disclose the file if reasonable identification or proof is not provided.

(8) No reporting agency may require an individual or the individual’s representative to give any undertaking or waive or release any right as a condition of obtaining access to the individual’s file and the disclosure of information under this section. .

E xplanation by in d ivid u a l 47 A n individual may deliver to a reporting agency, in writing of not more than 500 words, an explanation, or additional information, about the circumstances surrounding any item of information referring to the individual in the individual’s file, and the reporting agency must maintain the explanation or additional information in the file accompanying the item and include it in any report given containing the item.

C orrection o f errors 48(1) When an individual disputes the accuracy or completeness of any information referring to the individual in the individual’s file maintained by a reporting agency, the individual may file with the reporting agency a written statement of protest of not more than 500 words. 34

(2) When a statement of protest is filed, the reporting agency must use its best efforts to check the accuracy or complete the information and must, within 90 days of the filing of the statement, confirm, correct, supplement or delete the information in the individual’s file in accordance with good practice.

(3) When a reporting agency corrects, supplements or deletes information under subsection (2), the reporting agency must give notification of the correction, supplement or deletion to (

a) the individual, and (

b) unless otherwise requested by the individual, every person to whom a report based on the unamended file was given within 6 months before the correction, supplement or deletion is made. F a lse inform ation 49 No person may give false or misleading information to a reporting agency.

C ivil rem edy 50(1) If an individual has suffered loss, damage or inconvenience as a result of a contravention of this Part or the regulations made under this Part, the individual has a cause of action against the person who contravened this Part or the regulations made under this Part and is entitled, if the court finds the individual has suffered loss, damage or inconvenience, to a judgment for the damages suffered.

(2) In this section, “court” includes the Provincial Court, even though a contravention may also constitute a libel or slander. R e g u la tio n s 51 The Minister may make regulations (

a) designating persons as reporting agencies; (

b) requiring and governing the books, accounts and records to be kept and maintained by reporting agencies; (

c) prescribing information that may not be reported by a reporting agency or contained in its files; (

d) respecting fees that a reporting agency may charge an individual before disclosing or supplying information to the individual under

section 46. 35

PART 6 WAGE ASSIGNMENTS D efinitions 5 2 In this Part, (a) “lending institution” means a person who lends money in the ordinary course of the person’s business or operations; (b) “wages” includes any salary, pay, overtime pay and other remuneration for work or services however computed, but does not include tips or other gratuities. A ssig n m e n ts 5 3 A ny assignment by any person of all or any part of the person’s wages to secure the payment of an existing or future indebtedness (

a) is against public policy and void if it is made in favour of a lending institution; (

b) is unenforceable by a lending institution if it is originally made in favour of a person other than a lending institution and is later acquired by a lending institution.

PART 7 FEES CHARGED BY LOAN BROKERS C h a rg in g a n d collecting fees 54(1) No loan broker may charge or collect a fee for assisting a person in obtaining a loan until the person has received the proceeds of the loan.

(2) This

section does not apply to a loan broker who assists a person in obtaining a loan if the loan broker is authorized to deal as a mortgage broker under the Real Estate Act and the loan is part of a mortgage as defined in the Real Estate Act.

PART 8 CONSIGNMENT SALES, MOBILE HOMES AND MOTOR FUEL C onsignm ent sales 55(1) A n agreement is deemed to contain the terms set out in the regulations if (

a) the agreement is between an individual and another person in which the person agrees to sell goods of the individual on consignment, and 36

(

b) the agreement falls within a class of agreement specified in the regulations.

(2) Every person referred to in subsection (1) who agrees to sell goods of an individual must ensure that the agreement meets the requirements of the regulations.

(3) The Minister may make regulations (

a) specifying the classes of agreements to which this

section applies; (

b) setting out the terms that are deemed to be contained in one or more classes of agreements to which this

section applies; (

c) respecting the requirements that agreements to which this

section applies must meet; (

d) respecting the rights and remedies of the individual referred to in subsection (1) if the terms of the agreement are not met; (

e) requiring the person who agrees to sell goods of an individual to deposit money that the person receives from the sale of the goods into a trust account in the situations described in the regulations; (

f) respecting the trust account referred to in clause (e), including where the trust account may be established and maintained and when the money must be deposited; (

g) respecting who is entitled to the money in the trust account referred to in clause (e), the duties and responsibilities of the trustee, the disbursement of funds from the trust account and what happens if the person entitled to the money in the trust account cannot be located; (

h) respecting the records to be kept respecting the trust account referred to in clause (e), the period of time that those records are to be maintained and the audit of the trust account. M obile hom es 56(1) No person may sell a new mobile home unless the mobile home is constructed in accordance with the standards contained in or referred to in the regulations.

(2) The Minister may make regulations respecting construction standards for new mobile homes. 37

M otor fu e l 57(1) No person may sell motor fuel that does not meet the requirements of the regulations.

(2) The Minister may make regulations (

a) defining “motor fuel” for the purposes of this section; (

b) respecting standards specifications for motor fuel or any specified class of motor fuel; (

c) respecting the information to be furnished to a purchaser on the sale of any motor fuel in respect of which a standards specification is prescribed; (

d) respecting the grade, quality or specifications of motor fuel to be sold in A lberta, and the securing of samples and the methods of testing motor fuel; (

e) respecting advertising standards for selling motor fuel.

PART 9 COST OF CREDIT DISCLOSURE Division 1

Interpretation and Application D e fin itio n s 5 8 In this Part, (a) “advance” means value received by the borrower within the meaning of

section 59(3); (b) “A PR” means the annual percentage rate determined in accordance with the regulations; (c) “borrower” means the party to a credit agreement or prospective credit agreement who receives or will receive credit from the other party, but does not include a guarantor; (d) “brokerage fee” means an amount that a borrower pays or agrees to pay to a loan broker in consideration of the loan broker’s services in arranging or attempting to arrange a credit agreement, and includes an amount deducted from an advance and paid to the loan broker by the credit grantor; (

e) business day” means a day on which the credit grantor is open for business; 38

(f) “capitalized amount” means, subject to the regulations, the cash value of the leased goods plus the amount of any other advances made to the lessee at or before the beginning of the term, minus the total amount of all payments made by the lessee at or before the beginning of the term; (g) “cash customer” means a person who buys a product and pays for it in full before or at the time of receiving the product; (h) “cash price” of a product means, (

i) for a sale by a credit grantor or an associate of the credit grantor who sells the product to cash customers in the ordinary course of business, an amount that fairly represents the price for which the credit grantor or associate sells the product to cash customers, unless the parties agree on a lower price, (ii) for a sale where subclause (

i) does not apply, the price agreed on by the parties, and (iii) for an advertisement, the price for which the advertiser currently offers to sell the product to cash customers or, if the advertiser does not currently offer the product to cash customers, the price stated in the advertisement, and, for the purpose of determining the amount advanced under a credit agreement, includes taxes and any other charges payable by a cash customer; (i) “cash value” of leased goods means, (

i) where the lessor offers like goods to cash customers in the ordinary course of business, an amount that fairly represents the price for which the credit grantor sells such goods to cash customers, unless the parties agree on a lower cash value, and (ii) where the lessor does not in the ordinary course of business offer like goods to cash customers, the lessor’s reasonable estimate of the amount that cash customers would pay to buy such goods, unless the parties agree on a lower cash value; (j) “Court” means the Court of Queen’s Bench or, subject to the jurisdiction of the Provincial Court, the Provincial Court; 39

(k) “credit agreement” means an agreement under which credit is extended and, without limitation, includes (

i) a loan of money, (ii) a credit sale, and (iii) an agreement under which a loan of money or a credit sale may occur in the future; (l) “credit card” means a card or device that can be used to obtain advances under a credit agreement for open credit; (m) “credit grantor” means (

i) the party to a credit agreement or prospective credit agreement who extends or will extend credit to the other party, or (ii) an assignee of the rights of the original credit grantor, if the borrower has been given notice of the assignment, and includes a credit card issuer; (n) “credit sale” means a transaction under which the purchase of a product is financed by the seller or manufacturer of the product or by an associate of the seller or manufacturer; (o) “default charge” means a charge imposed on a borrower who fails to make a payment as it comes due under a credit agreement or who fails to comply with any other obligation under a credit agreement, but does not include interest on an overdue payment; (p) “fixed credit” means credit under a credit agreement that is not for open credit; (q) “floating rate” means an interest rate that bears a specified mathematical relationship to an index rate, and includes an interest rate that (

i) is subject to a minimum or maximum, or (ii) is determined at the beginning of a period for the whole period, regardless of changes in the index rate during the period; (r) "grace period” means a period in which interest accrues but will be forgiven if the borrower satisfies conditions specified in the credit agreement; 40

(s) “index rate” means a rate that meets criteria prescribed by the regulations; (t) “initial disclosure statement” means a disclosure statement referred to in

section 77, 84 or 93; (u) “interest” means charges that accrue over time and are determined by applying a rate to an amount owing from time to time under a credit agreement; (v) “interest-free period” means a period following the making of an advance during which interest does not accrue on the advance; (w) “lease” means any agreement for the hire of goods, except an agreement for the hire of goods in connection with a residential tenancy agreement; (x) “lessee” means a party to a lease or prospective lease; (y) “mortgage loan” means a loan of money secured by an interest in real property; (z) “non-interest finance charge” means any charge that a borrower is required to pay in connection with a credit agreement other than (

i) interest, (ii) a prepayment or default charge, (iii) a charge for an optional service, (iv) a charge referred to in

section 59(3)(

f) or (

g) or anything designated under

section 59(3)(h), or (

v) for a credit sale, any charge that would also be payable by a cash customer; (aa) “open credit” means credit under a credit agreement that (

i) anticipates multiple advances, to be made when requested by the borrower in accordance with the agreement, and (ii) does not establish the total amount to be advanced to the borrower under the agreement, although it may impose a credit limit; (bb) “optional service” means a service that is offered to a borrower in connection with a credit agreement and that the 41

borrower does not have to accept in order to enter into the credit agreement; (cc) “outstanding balance” means the total amount owing at a particular time under a credit agreement; (dd) “payment” means value given by a borrower within the meaning of

section 59(5); (ee) “product” means goods, services or goods and services, but does not include the extension of credit; (ff) “scheduled-payments credit agreement” means a credit agreement for fixed credit under which the amount advanced is to be repaid in accordance with a specified

schedule of payments, which may be subject to adjustment to accommodate contingencies, including, but not limited to, the possibility of changes in the interest rate; (gg) “security interest” means any interest in property that secures the borrower’s obligations under a credit agreement; (hh) “term”, in relation to the duration of a credit agreement, means the period between the first advance and the last payment anticipated by the agreement; (ii) “total cost of credit” has the meaning set out in

section 59(2). D eterm ination of co st o f cre d it 59(1) In subsections (3), (4) and (5), except subsection (3)(b), (

e) and (g), “borrower”, “credit grantor” and “credit agreement” include a lessee, lessor and lease, respectively.

(2) The total cost of credit is the difference between the value received or to be received by the borrower in connection with a credit agreement and the value given or to be given by the borrower in connection with the credit agreement, disregarding the possibility of prepayment or default.

(3) Subject to subsection (4), the following constitute value received or to be received by a borrower in connection with a credit agreement: (

a) money transferred by the credit grantor to the borrower or to the order of the borrower; (

b) the cash price of a product purchased under the credit agreement; 42

(

c) the cash value of leased goods under a lease; (

d) the payment, discharge or consolidation by the credit grantor of a pre-existing monetary obligation of the borrower, the value received by the borrower being the amount of the obligation so paid, discharged or consolidated; (

e) the use of a credit card to obtain money or a product, the value received by the borrower being the money obtained or the cash price of the product; (

f) a charge for any of the following expenses, if the credit grantor incurs the expense for the purpose of arranging, documenting, insuring or securing a credit agreement and then charges the expense to the borrower: (

i) a fee paid to a third party to record or register a document or information in, or to obtain a document or information from, a public registry of interests in real or personal property; (ii) a fee for professional services required for the purpose of confirming the value, condition, location or conformity to law of property that serves as security for a credit agreement, if the borrower is given a report signed by the person providing the professional services and is free to give the report to third persons; (iii) a premium for insurance that protects the credit grantor against the risk of default on a high-ratio mortgage, as defined by regulation; (iv) a premium for casualty insurance on the subject-matter of a security interest, if the borrower is a beneficiary of the insurance and the insured amount is the full insurable value of the subject-matter; (

g) a fee charged by the credit grantor for maintenance of a tax account on a high-ratio mortgage, as defined by regulation; (

h) anything designated by the regulations as value received by the borrower for the purposes of this subsection.

(4) The following do not constitute value received or to be received by the borrower unless they relate to an optional service, an expense or fee referred to in subsection (3)(

f) or (

g) or something designated under subsection (3)(h): 43

(

a) insurance provided or paid for by the credit grantor in connection with a credit agreement; (

b) money paid, an expense incurred or anything done by the credit grantor for the purpose of arranging, documenting, securing, administering or renewing a credit agreement.

(5) The following constitute value given or to be given by a borrower in connection with a credit agreement: (

a) money or property transferred from the borrower to the credit grantor for any purpose in connection with the credit agreement; (

b) money or property transferred from the borrower to a person other than the credit grantor in respect of a charge for services that the credit grantor requires the borrower to obtain or pay for in connection with the credit agreement, unless the charge (

i) is for an expense to which subsection (3)(

f) or regulations under subsection (3)(

h) would have applied if it had been incurred initially by the credit grantor and then charged by the credit grantor to the borrower, (ii) is for services provided by a lawyer chosen by the borrower, or (iii) is for title insurance provided by an insurer chosen by the borrower.

(6) Despite subsections (3) and (5), amounts paid into or out of a tax account for a mortgage loan are ignored when calculating the A PR and total cost of credit. A pplication 60(1) In this section, “borrower”, “credit grantor” and “credit agreement” include a lessee, lessor and lease, respectively.

(2) This Part applies to a loan or lease made by A lberta Treasury Branches and to a loan made by the A lberta Social H ousing Corporation or its predecessors.

(3) Subject to subsections (4) and (5) and the regulations, this Part applies to a credit agreement if (

a) the borrower is an individual who enters into the credit agreement primarily for personal, family, household or farming purposes, and 44

(

b) either, (

i) the credit grantor enters into the agreement in the course of carrying on a business, or (ii) the credit agreement is arranged by a loan broker.

(4) For the purposes of subsection (3)(a), a credit grantor is entitled to rely on a statement in a credit agreement or other document regarding the purpose for which a borrower enters into a credit agreement, if the statement is signed by the borrower and the credit grantor believes in good faith that the statement is true.

(5) This Part does not apply to a credit sale where all of the following occur: (

a) the credit sale anticipates payment in full for the product in a single payment within a certain period after a written invoice or statement of account is delivered to the buyer, (

b) the credit sale is unconditionally interest-free during the period for payment referred to in clause (a), (

c) the credit sale is unsecured, apart from any lien on the product that may arise by operation of law, (

d) the credit sale is not assigned in the ordinary course of the credit grantor’s business otherwise than as security, and (

e) the credit sale does not provide for any non-interest finance charges. Division 2 Disclosure D efinition 61 In sections 62 to 67 “borrower”, “credit grantor” and “credit agreement” include a lessee, lessor and lease, respectively. R e q u ire m e n t to disclose 62(1) Every credit grantor must, in the form and manner provided by this Part and the regulations, disclose to borrowers the information that this Part and the regulations require to be disclosed.

(2) Every credit grantor must, with respect to any advertisement published or made by or on behalf of the credit grantor, disclose in the advertisement, in the form and manner provided by this Part and the regulations, the information that this Part and the regulations require to be disclosed. 45

F orm o f d isclo su re sta te m e n ts 63(1) Where this Part or the regulations require a disclosure to be made in a disclosure statement, the disclosure statement (

a) must be in writing or, with the borrower’s consent, in any form that will allow the borrower to retain the disclosure statement for future reference, and (

b) must express the required information clearly, concisely, in a logical order and in a manner that is likely to bring the information to the borrower’s attention.

(2) A disclosure statement may be a separate document or part of another document. T im e at w hich d isclo su re statem ent to b e d e live re d 64(1) The credit grantor must deliver the initial disclosure statement for a credit agreement other than a mortgage loan to the borrower before the earlier of the following occurs: (

a) the borrower enters into the credit agreement; (

b) the borrower makes any payment in connection with the credit agreement.

(2) The credit grantor must deliver the initial disclosure statement for a mortgage loan to the borrower at least 2 business days before the earlier of the following occurs: (

a) the borrower incurs any obligation to the credit grantor in connection with the mortgage loan, other than an obligation in respect of a charge referred to in

section 59(3)(

f) or prescribed by regulation for the purposes of this clause; (

b) the borrower makes any payment to the credit grantor in connection with the mortgage loan, other than a payment in respect of a charge referred to in

section 59(3)(

f) or prescribed by regulation for the purposes of this clause.

(3) When authorized by the regulations, the time period referred to in subsection (2) may be waived in accordance with terms and conditions set out in the regulations. D e live ry o f d isclo su re sta te m e n ts 65(1) Where there is more than one borrower under a credit agreement, a disclosure statement or other document that is required to be delivered to the borrowers may be delivered to any of the borrowers, and it is unnecessary to deliver a separate copy to each borrower. 46

(2) A document sent by ordinary mail to a borrower at the mailing address provided by the borrower to the credit grantor is considered, in the absence of evidence to the contrary, to have been delivered to the borrower 7 days after it was sent. Fees, Charges and Optional Services R equired in su ra n ce 66(1) A borrower who is required by a credit grantor to purchase any insurance may purchase it from any insurer who may lawfully provide that type of insurance, except that the credit grantor may reserve the right to disapprove, on reasonable grounds, an insurer selected by the borrower.

(2) A credit grantor who offers to provide or to arrange insurance referred to in subsection (1) must at the same time clearly disclose to the borrower in writing that the borrower may purchase the required insurance through an agent and from an insurer of the borrower’s choice. C ancellation o f optional services 67(1) A borrower may cancel an optional service of a continuing nature that is provided by the credit grantor or an associate of the credit grantor on giving 30 days’ notice, or such shorter period of notice as is provided for by the agreement under which the service is provided.

(2) A borrower who cancels an optional service in accordance with subsection (1) (

a) is not liable, and (

b) is entitled to a refund of any amount already paid, for charges relating to any portion of the service that has not been provided at the time of cancellation. P re p a ym e n t of n o n -m o rtg a g e cre d it 68(1) This

section does not apply to mortgage loans.

(2) A borrower is entitled to pay the full outstanding balance under a credit agreement at any time without any prepayment charge or penalty.

(3) Where a borrower prepays the full outstanding balance under a credit agreement for fixed credit, the credit grantor must refund or credit the borrower with a portion of any non-interest finance charge that was paid by the borrower or was added to the outstanding balance of the credit agreement. 47

(4) The portion of each non-interest finance charge that must be refunded or credited to the borrower under subsection (3) is to be determined in accordance with the regulations.

(5) A borrower is entitled to prepay a portion of the outstanding balance of a credit agreement for fixed credit on any scheduled payment date or at least monthly without any prepayment charge or penalty, but is not entitled by reason of the payment to a credit for any non-interest finance charges. D efault charges 69 The only default charges that may be provided for by a credit agreement are (

a) reasonable charges in respect of legal costs incurred in collecting or attempting to collect a payment under a credit agreement, (

b) reasonable charges in respect of costs, including legal costs, incurred in realizing a security interest or protecting the subject-matter of a security interest after default, and (

c) reasonable charges that reflect charges incurred by the credit grantor because a cheque or other payment instrument given by the borrower to the credit grantor was dishonoured. Invitation to defer p a ym e n t 70(1) Where a credit grantor invites a borrower to defer making a payment that would otherwise be due under a credit agreement, the invitation must clearly disclose whether or not interest will accrue on the unpaid amount during the period during which payment is deferred.

(2) Where an invitation referred to in subsection (1) does not disclose whether or not interest will accrue on the unpaid amount during the period during which payment is deferred, the credit grantor is deemed to waive the interest that would otherwise accrue during that period. A cceleration cla u se s 71(1) Despite anything in a credit agreement, where the credit agreement contains a provision to the effect that on default by the borrower or on the occurrence of any other event, and whether or not at the option of the credit grantor, the whole or part of the outstanding balance becomes immediately payable or is otherwise accelerated, (

a) the whole or part of the outstanding balance does not become payable or otherwise accelerated, and 48

(

b) any rate of interest made specially applicable to the outstanding balance does not become effective, until written notice of the default or other event (

c) is served personally on the borrower, or (

d) is sent by registered mail to the borrower at the borrower’s latest address as shown on the records of the credit grantor.

(2) Despite subsection (1), where the credit grantor sends a notice under subsection (1)(d), (

a) the whole or part of the outstanding balance does not become payable or otherwise accelerated, and (

b) any rate of interest made specially applicable to the outstanding balance does not become effective, until 10 days has elapsed from the date that the notice was sent to the borrower. Credit Arranged by Loan Brokers N on-business credit grantors 72(1) This

section applies where a loan broker arranges a credit agreement involving a credit grantor who does not enter into the credit agreement in the course of carrying on a business.

(2) A ny provision of this Part or the regulations that imposes a duty on a credit grantor is to be read as imposing the duty on the loan broker, rather than on the credit grantor.

(3) Where the borrower pays or is liable to pay a brokerage fee, the initial disclosure statement for the credit agreement must (

a) disclose the amount of the brokerage fee, and (

b) account for the brokerage fee in the A PR and total cost of credit. B usiness cre d it g ra n to rs 73(1) This

section applies where a loan broker arranges a credit agreement involving a credit grantor who enters into the credit agreement in the course of carrying on a business.

(2) Where the credit grantor deducts a brokerage fee from an advance, the credit grantor’s initial disclosure statement must (

a) disclose the amount of the brokerage fee, and 49

(

b) account for the brokerage fee in the A PR and the total cost of credit.

(3) A loan broker who takes a loan application from a borrower and forwards it to a credit grantor must give the borrower a disclosure statement containing the information referred to in subsection (2) and any other information required by this Part and the regulations to be disclosed in an initial disclosure statement.

(4) Where a loan broker is required by subsection (3) to give the borrower a disclosure statement, the credit grantor may adopt the disclosure statement given by the loan broker as its own disclosure statement or may elect to deliver a separate disclosure statement to the borrower that contains the required information. Division 3 Fixed Credit General A pplication 74 This Division applies only to credit agreements that extend fixed credit. C re d it sales 75 A credit grantor may not enter into a credit sale unless the credit sale is a scheduled-payments credit agreement.

A d ve rtisin g for fixe d credit 76(1) Every advertisement that offers credit and that states the interest rate or amount of any payment must disclose the information provided by the regulations.

(2) A n advertisement that states or implies that no interest is payable for a certain period in respect of a transaction must, in the form and manner referred to in the regulations, disclose the information prescribed by the regulations.

(3) A n advertisement to which subsection (2) applies that does not, in the form and manner referred to in the regulations, disclose the information required under subsection (2) is deemed to represent that the transaction is unconditionally interest-free during the relevant period. Disclosure Statements In itia l disclosure statem ent fo r fixe d credit 77 The initial disclosure statement for a credit agreement must disclose the information prescribed by the regulations. 50

C h a n g e s in in te re st rate 78(1) Where the interest rate under a credit agreement is a floating rate, the credit grantor must, at least once every 12 months, deliver to the borrower a disclosure statement containing the information prescribed by the regulations for the period covered by the statement.

(2) Where the interest rate may be changed but is not a floating rate, the credit grantor must, within 30 days after increasing the annual interest rate to a rate that is at least 1% higher than the rate most recently disclosed to the borrower, deliver to the borrower a disclosure statement containing the information prescribed by the regulations.

(3) Where, as a result of an increase in the outstanding principal because of a missed or late payment or the imposition of a default charge, the scheduled payments under a scheduled-payments credit agreement will not cover interest that will accrue between payments, the credit grantor must give the borrower notice in writing to that effect within 30 days after the outstanding principal increases. D isclosure re g a rd in g am endm ents 79(1) If information disclosed in an earlier disclosure statement changes because of an amendment to a credit agreement, the credit grantor must deliver a supplementary disclosure statement to the borrower within 14 days after the amendment is made.

(2) The supplementary disclosure statement must provide the changed information but need not repeat any information that is unchanged from the earlier disclosure statement.

(3) Where an amendment consists only of a revision to the

schedule of payments, the supplementary disclosure statement need not disclose any change to the A PR or total payments or any decrease in the total cost of credit.

(4) This

section does not apply to changes effected by a renewal agreement to which

section 80 or 81 applies. D isclo su re w here m o rtg a g e loan renew ed 80(1) Where the amortization period for a mortgage loan under a scheduled-payments credit agreement is longer than its term, the credit grantor must, at least 21 days before the end of the term, deliver to the borrower a written notice stating whether or not the credit grantor is willing to renew the loan for a further term.

(2) A credit grantor who is willing to renew a mortgage loan must include with the notice referred to in subsection (1) a disclosure statement that contains the information prescribed by the regulations. 5 1

(3) Where the terms of the renewal agreement differ from the terms contemplated in the disclosure statement because (

a) the outstanding balance on the renewal date differs from what was stated in the disclosure statement because of one or more missed, late, early or extra payments, (

b) the interest rate under the renewal agreement is lower than was stated in the disclosure statement, or (

c) the amortization period or frequency of payments under the renewal agreement differs from what was stated or assumed, or because of any combination of such events, the credit grantor must deliver a revised disclosure statement to the borrower within 30 days after the effective date of the renewal agreement.

(4) Subject to subsection (3), where a credit grantor does not provide a disclosure statement that reflects the actual terms of the renewal agreement to the borrower at least 21 days before the effective date of a renewal agreement, the borrower (

a) is entitled to prepay the outstanding balance of the renewed mortgage loan without penalty at any time within 21 days after receiving the disclosure statement, and (

b) on exercising that right, is entitled to a refund of any non interest finance charges imposed in connection with the renewal. R e n e w a l of n o n -m o rtg a g e loan 81 When fixed credit other than a mortgage loan is renewed, the credit grantor must deliver to the borrower on or before the renewal date a disclosure statement containing the information prescribed by the regulations. Division 4 Open Credit General A pplication 82 This Division applies only to credit agreements that extend open credit. A dvertising fo r o p e n cre d it 83(1) A n advertisement that gives any specific information about the cost of credit must disclose the information prescribed by the regulations. 5 2

(2) A n advertisement that states or implies that no interest is payable for a certain period in respect of a transaction under a credit agreement must, in the form and manner referred to in the regulations, disclose the information prescribed by the regulations.

(3) A n advertisement to which subsection (2) applies that does not, in the form and manner referred to in the regulations, disclose the information required under subsection (2) is deemed to represent that the transaction is unconditionally interest-free during the relevant period. Initial d isclo su re statem ent 84 The initial disclosure statement for a credit agreement must disclose the information prescribed by the regulations. S tatem ent o f account 85(1) Subject to subsection (2), the credit grantor must deliver a statement of account to the borrower at least monthly.

(2) A credit grantor is not required to send a statement of account to a borrower at the end of any period during which there have been no advances or payments where (

a) the outstanding balance is zero, or (

b) the borrower is in default and has been notified that the privilege of obtaining advances under the agreement has been cancelled or suspended and the credit grantor has demanded payment of the outstanding balance.

(3) The credit grantor must provide a telephone number at which the borrower can make inquiries about the borrower’s account during the credit grantor’s ordinary business hours without incurring any charges for the call.

(4) A statement of account must disclose the information prescribed by the regulations. Credit Cards N o unsolicited credit cards 86(1) A credit card issuer must not issue a credit card to a person who has not applied for the card. (2) Subsection (1) does not apply to a credit card that is issued to a person to replace or renew a card that was applied for and issued to that person. 53

A p p lica tio n for credit card 87(1) A credit card issuer must disclose in an application form for a credit card the information prescribed by the regulations.

(2) A person who applies for a credit card without signing an application form is considered to enter into a credit agreement in relation to that card on using the card for the first time.

(3) Nothing in this

section relieves the credit card issuer from the requirement to deliver an initial disclosure statement in accordance with sections 64(1) and 84. A d d itio n a l disclosure fo r credit card 88(1) In addition to the applicable information required to be disclosed under

section 84, a credit card issuer must disclose in the initial disclosure statement for open credit associated with a credit card the card holder’s maximum liability for unauthorized use of the credit card if it is lost or stolen.

(2) The credit card issuer must give the card holder at least 30 days’ notice of any change in the information disclosed in a disclosure statement. (3) Subsection (2) does not apply to (

a) a change in the credit limit, (

b) a decrease in the interest rate or the amount of any other charge, (

c) an increase in the length of an interest-free period or grace period, or (

d) a change in a floating rate, but the relevant information must be disclosed in the next statement of account following the change or in a document that is given to the borrower with the next statement of account. Lim itation o f liability 89(1) A card holder is not liable for a debt incurred through the unauthorized use of a lost or stolen credit card after the credit card issuer receives notice of the loss or theft.

(2) A notice under subsection (1) may be oral or in writing.

(3) The maximum total liability of a card holder arising from unauthorized use of a lost or stolen credit card before the issuer receives notice under subsection (1) is the lesser of (a) $50, and 5 4

(

b) the amount fixed or agreed to by the credit card issuer as the maximum amount for which the card holder is liable in the event of the unauthorized use of the card after its loss or theft. (4) Subsection (3) does not apply to a transaction prescribed by regulation.

Division 5 Leases of Goods D e fin itio n s 90 In this Division, (a) “estimated residual value” means the lessor’s reasonable estimate of the wholesale value of the leased goods at the end of the lease term; (b) “residual obligation lease” means a lease under which the lessee may be required at the end of the lease term to pay the lessor an amount based wholly or partly on the difference, if any, between the estimated residual value and the realizable value of the leased goods; (c) “term”, in relation to the duration of a lease, means the period during which the lessee is entitled to retain possession of the leased goods.

A pplication o f D ivision 91 This Division applies to a lease if the lease (

a) is for a fixed term of 4 months or more, (

b) is for an indefinite term or is renewed automatically until one of the parties takes positive steps to terminate it, or (

c) is a residual obligation lease. A dvertise m ents 92 A n advertisement that gives any specific information about the cost of a lease must disclose the information prescribed by the regulations. D isclosure statem ent fo r le a se 93 The initial disclosure statement for a lease must disclose the information prescribed by the regulations. 5 5

R e sid u a l obligation le a se s 94 The lessee’s maximum liability at the end of the term of a residual obligation lease after returning the leased goods to the lessor is to be calculated in accordance with the regulations. Division 6 Compliance

Interpretation 95(1) In this Division, “borrower”, “credit grantor” and “credit agreement” include a lessee, lessor and lease, respectively, and “credit grantor” also includes a loan broker.

(2) For the purposes of this Division, a credit grantor is considered to have a compliance procedure if the credit grantor (

a) requires its employees and agents to follow procedures, or has implemented automated procedures, designed to ensure that borrowers receive the information to which they are entitled at the time and in the form required by this Part, and (

b) monitors the effectiveness of the measures referred to in clause (

a) and promptly remedies any deficiencies it discovers in their design or implementation. R e co ve ry o f paym ents and com pensation 96(1) Despite any agreement to the contrary, where a borrower makes a payment to a credit grantor that by virtue of this Part the credit grantor is not entitled to receive, the credit grantor must refund the payment to the borrower or, if the parties agree, credit the payment against the outstanding balance of the relevant credit agreement as of the time the payment was made.

(2) A credit grantor who contravenes this Part or the regulations must compensate a borrower for any loss the borrower suffers because of the contravention, and the compensation to which the borrower is entitled may be set off against the outstanding balance of the relevant credit agreement or may be recovered in an action.

In co n siste n cy b e tw e e n disclosure sta te m e n t a n d contract 97 If information in a disclosure statement is inconsistent with any information or term set out in the credit agreement, the credit agreement is presumed to incorporate the information or term that is more favourable to the borrower, unless it is proved that the less favourable information or term reflects the borrower’s actual understanding of the terms of the agreement. 5 6

S ta tu to ry dam ages 98(1) A contravention of this Part or the regulations by a credit grantor is an excusable error for the purposes of this

section if (

a) the credit grantor had a compliance procedure when the contravention occurred, (

b) the contravention was accidental or the result of an employee s or agent’s failure to follow the compliance procedure, and (

c) on discovering the contravention, the credit grantor promptly took steps to minimize its effect on any affected borrower.

(2) Where a credit grantor contravenes this Part or the regulations in relation to a credit agreement and the contravention is not an excusable error, the borrower is entitled, in addition to any other remedy to which the borrower may be entitled under this Part, to recover from the credit grantor in an action the statutory damages provided for by this section.

(3) Subject to subsection (4), the statutory damages for a contravention of this Part or the regulations are the lesser of $500 and 5% of whichever of the following is applicable: (

a) for a credit agreement for fixed credit, the maximum outstanding balance; (

b) for a lease, the capitalized amount; (

c) for a credit agreement for open credit, the credit limit, except that the statutory damages are $500 for open credit that does not specify a credit limit.

(4) Where a contravention of this Part or the regulations relates to a statement of account for open credit, the statutory damages are equal to the interest and any non-interest finance charges for the period covered by the statement of account.

(5) The Court may reduce the statutory damages to which a borrower would otherwise be entitled under this

section if the Court is satisfied in view of all the circumstances, including any undertakings as to future compliance with this Part or the regulations that are given by the credit grantor, that it would be just and equitable to do so.

(6) Statutory damages to which a borrower is entitled may be set off against any amount otherwise payable by the borrower to the credit grantor. 57

E xem plary dam ages 99 The Court may award exemplary damages to a borrower against a person who has deliberately contravened this Part or the regulations or in any case where the Court considers that the conduct of a person who has contravened this Part or the regulations justifies an award of exemplary damages against that person. A ssignee 100(1) Except as otherwise provided in this section, a borrower may assert against a person to whom the rights of a credit grantor have been assigned any rights or remedies under

section 96, 97 or 98 that the borrower could have asserted against the original credit grantor immediately before receiving notice of the assignment.

(2) The assignee’s maximum liability under any of the provisions referred to in subsection (1) is limited to the outstanding balance at the time of the assignment, or the proportion of the outstanding balance that is assigned to the assignee.

(3) A n assignee incurs no liability under this

section for a credit grantor’s contravention of this Part or the regulations unless (

a) the assignee knew of the contravention before the borrower received notice of the assignment, (

b) the contravention consists of the credit grantor’s failure to deliver a disclosure statement to the borrower when required by this Part or the regulations, or (

c) the contravention is apparent on the face of a disclosure statement, or by comparing the disclosure statement with the written terms of the credit agreement.

(4) A n assignee is entitled to rely in good faith on a borrower’s signed acknowledgment of receipt of a disclosure statement. Division 7 Regulations R e g u la tio n s 101(1) The Minister may make regulations (

a) respecting the criteria in determining what constitutes an index rate; (

b) respecting the calculation of the A PR for the purposes of credit agreements and leases; (

c) defining “high-ratio mortgage” for the purposes of

section 59(3)(f)(iii) and (g); 58

(

d) designating what is value received by a borrower for the purposes of

section 59(3)(h); (

e) respecting terms and conditions for the waiver of the time period referred to in

section 64(2); (

f) respecting, in addition to the requirements set out in this Part, (

i) the form of disclosure statements and the form of disclosure in advertisements, (ii) information to be disclosed in a disclosure statement or advertisement, and (iii) the manner in which information may be disclosed under this A ct and the regulations; (

g) respecting the form and manner in which information referred to in sections 76 and 83 must be disclosed in an advertisement; (

h) respecting the manner in which a refund referred to in

section 67(2)(

b) may be determined; (

i) determining the portion of each non-interest finance charge that must be refunded or credited to the borrower under

section 68(4); (

j) respecting what constitutes reasonable charges for the purpose of

section 69; (

k) respecting the information that must be disclosed for the purposes of sections 76(1) and (2), 77, 78(1) and (2), 80(2), 81, 83(1) and (2), 84, 85(4), 87(1) and (3), 92 and 93; (

l) respecting the transactions to which

section 89(3) does not apply; (

m) respecting, for the purposes of

section 94, the calculation of a lessee’s maximum liability at the end of the term of a residual obligation lease after returning the leased goods to the lessor; (

n) restricting or broadening the definition of "capitalized amount”; (

o) defining any term or expression not otherwise defined in this Part; 5 9

(

p) respecting the early termination of leases, including the early exercise of purchase options, and, in particular, limiting the compensation or penalties payable by a lessee on the early termination of a lease.

(2) The Lieutenant Governor in Council may make regulations respecting the exemption of any class of advertisement, credit agreement, credit grantor, loan broker, lease or lessor from the application of this Part or the regulations or of any provision of this Part or the regulations.

PART 10 DESIGNATED TRADES AND BUSINESSES D e fin itio n s 102 In this Part, (a) “designated agent” means a person who is appointed as a designated agent pursuant to the regulations; (b) “designated business” means a trade, business, industry, employment or occupation to which this

Part is made applicable by regulation under

section 103. A pplication o f P a rt 103(1) The Lieutenant Governor in Council may, by regulation, provide that this Part applies to the whole or a part of a trade, business, industry, employment or occupation designated in the regulations.

(2) The Lieutenant Governor in Council may not designate the following: (

a) trades, businesses, industries, employments and occupations that are licensed pursuant to the Gaming and Liquor Act or the Amusements Act; (

b) professions or callings to which the Apprenticeship and Industry Training Act, Architects Act, Certified General Accountants Act, Certified Management Accountants Act, Chartered Accountants Act, Chiropractic Profession Act, Dental Profession Act, Engineering, Geological and Geophysical Professions Act, Land Surveyors Act, Legal Profession Act, Medical Profession Act, Nursing Profession Act, Optometry Profession Act, Pharmaceutical Profession Act, Real Estate Act, Teaching Profession Act or Veterinary Profession Act applies; (

c) a trade, business, industry, employment or occupation that is subject to the control of the Public Utilities Board; 60

(

d) the occupation of a farmer, a rancher, a farm labourer, a domestic servant or an unskilled labourer. Licence re q u ire d - designated businesses 104(1) No person may engage in a designated business unless the person holds a licence under this A ct that authorizes the person to engage in that business.

(2) If a person engages in a designated business at more than one location, the person must hold a separate licence issued under this A ct that authorizes the person to engage in that business for each location. R egulations 105

(1) The Minister may make regulations (

a) specifying activities that constitute engaging in a designated business for the purposes of this A ct; (

b) prescribing fees payable by or in respect of designated agents; (

c) respecting the duties and obligations of persons engaged or employed in a designated business; (

d) requiring persons engaged or employed in a designated business to appoint designated agents as their representatives and respecting the eligibility requirements, duties and obligations of designated agents; (

e) prescribing or adopting, with or without modification, codes, standards or rules governing (

i) the manner of carrying on a designated business or class of designated business, (ii) experience and education requirements and requirements as to financial responsibility of persons carrying on or wishing to carry on a designated business, (iii) the type and condition of premises and equipment used in a designated business, and (iv) the conduct of persons engaged in carrying on a designated business; (

f) respecting the manner of informing members of the public of 61

(

i) any sale of or dealing with goods, products or services of a designated business, and (ii) contraventions of this Part; (

g) respecting terms and conditions for a designated business or class of designated business that has contravened this Part or the regulations made under this Part to continue operating as a business under this Part; (

h) prescribing in respect of any designated business or class of designated business that the approval of any authority specified by the Minister is required for the obtaining of a licence or the renewal of a licence or the establishment of that business or class of business; (

i) prescribing as to any designated business or class of designated business the information to be contained in agreements used by persons carrying on or engaged in that business in their dealings with the public; (

j) requiring in respect of any designated business or class of designated business that specified accounts and records be maintained by persons carrying on or engaged in that business.

(2) The Minister may, by order, delegate in whole or in part to any other head of a department of the Public Service the power to make any regulations under this Part that the Minister is empowered to make, and the Minister may, by order, authorize another department to make any inspections of any business for the purposes of this Part. D elegation to regulatory boards 106(1) The Minister may make regulations (

a) providing for the establishment of regulatory boards to exercise the powers, duties and functions delegated to them under subsection (5); (

b) providing for the appointment of the members of a regulatory board, including, without limitation, providing for the number of members, the method of appointment of members, the terms of office of members and the filling of vacancies.

(2) A regulatory board may make by-laws (

a) respecting the conduct of the business and affairs of the board; 62

(

b) respecting the calling of meetings of the members and the conduct of business at those meetings; (

c) respecting the appointment, removal, functions, powers, duties, remuneration and benefits of members, officers and employees of the board; (

d) delegating to the officers of the board or any committee of it any powers of the board required to manage the business and affairs of the board, except the power to make by-laws; (

e) respecting the establishment, membership, duties and functions of special, standing and other committees.

(3) A by-law made by a regulatory board is not effective until it is approved by the Director.

(4) The Regulations Act does not apply to a by-law of a regulatory board.

(5) The Director may by notice in writing to a regulatory board (

a) delegate to a regulatory board any or all of the Director’s powers, duties or functions under this A ct and the regulations, except the power to approve by-laws, (

b) impose any conditions on the regulatory board’s exercise of the delegated powers, duties or functions that the Director considers appropriate, and (

c) amend or revoke the notice.

(6) Where the Director makes a delegation under subsection (5), a reference in this Part or the regulations made under this Part to the Director with respect to the delegated power, duty or function is to be read as if it were a reference to the regulatory board to whom the delegation was made.

(7) The Minister may make regulations respecting (

a) the collection of fees by a regulatory board on the Government’s behalf and their remission to the Provincial Treasurer, and (

b) the payment of a commission to a regulatory board for its services under this subsection.

(8) A regulatory board may, with the approval of the Minister, collect money by the levy of assessments on persons licensed under this A ct and designated agents for the purpose of enabling the 63

board to carry out the powers, duties and functions delegated to it under subsection (5).

(9) A person may not, without the written consent of the Director, disclose any information that the person has obtained in the course of exercising delegated authority under this section. E stablishm ent of fund by regulatory board 107(1) A regulatory board may create a fund to be used for the following purposes: (

a) to pay claims of persons who have suffered loss or damage arising out of the operation of a designated business by a licensee; (

b) any other purposes authorized by the regulations.

(2) Subject to the regulations, the regulatory board may collect money by the levy of assessments on (

a) persons licensed under this Part, and (

b) designated agents who are engaged or employed in the designated business in respect of which powers, duties or functions have been delegated to the board under

section 106(5).

(3) The money collected under subsection (2) and any income from the investment of that money must be credited to the fund.

(4) A regulatory board is deemed to hold in trust all money credited to a fund and must immediately deposit that money in a trust account in a bank, treasury branch, trust company or credit union in A lberta, separate and apart from any other money of the regulatory board.

(5) Despite subsections (3) and (4), a regulatory board may, from the income from the investment of the money in a fund, pay the administrative costs associated with the fund.

(6) If the income from the investment of the money in a fund is insufficient to pay the administrative costs associated with the fund, the regulatory board may collect money to pay those costs by the levy of assessments on persons licensed under this Part and designated agents in accordance with the regulations.

(7) The Minister may make regulations 64

(

a) respecting purposes for which the money in a fund may be used, in addition to the purpose referred to in subsection (1)(a); (

b) respecting the investment of the money in a fund that is not currently required for disposition; (

c) respecting the protection, by insurance or other means, of the money in a fund against claims or losses; (

d) respecting the administration of a fund and the levy and collection of assessments for a fund; (

e) requiring a regulatory board to make a report to the Minister and respecting the nature and contents of such a report and the times at which it must be made; (

f) respecting the kinds of claims that may be paid from a fund and the conditions to be met before any claim is paid from a fund; (

g) respecting the limits of liability of a fund; (

h) respecting the time period within which claims against a fund must be made; (

i) providing for the recovery by the regulatory board from a licensee of amounts paid from the fund to a claimant in respect of a claim against the licensee for loss or damage arising out of the operation of a designated business by the licensee; (

j) respecting the winding-up of a fund. C odes respecting com petitive practices 108(1) The Minister may establish or adopt codes that establish standards of ethics, methods, practices and systems applicable to any designated business or class of designated business to effect an end to or to prevent competitive practices that are, by their nature, detrimental either to the business, to persons employed in the business or to the public.

(2) The Minister must ensure that any code established or adopted under subsection (1) is published in The A lberta Gazette.

(3) The Regulations Act does not apply to a code established or adopted under subsection (1). C o m p lia n ce w ith code 109 The principals, directors, managers and employees of a 65

designated business that is subject to a code under

section 108 must comply with the code. M unicipal licences 110 No municipality or Metis settlement may issue a licence for the carrying on of a designated business unless the applicant for the licence holds a licence issued under this A ct in respect of that business.

PART 11 COLLECTION PRACTICES D efinitions 111 In this Part, (a) “collection agency” means a person, other than a collector, who carries on the business (

i) of collecting or attempting to collect debts for other persons, (ii) of collecting or attempting to collect debts under any name that differs from that of the creditor to whom the debt is owed, (iii) of offering or undertaking to act for a debtor in arrangements or negotiations with the debtor’s creditors or receiving money from a debtor for distribution to the debtor’s creditors in consideration of a fee, commission or other remuneration that is payable by the debtor, (iv) of offering or undertaking to act for a creditor in realizing on any security given to the creditor for a debt, or (

v) of selling or offering to sell any collection system, device or scheme intended or calculated to be used to collect debts; (b) “collector” means a person employed or authorized by a collection agency to do the following for the collection agency: (

i) collect or attempt to collect money; (ii) solicit business; (iii) realize on a security; 66

(iv) deal with or locate debtors. E xem ptions 112(1) This Part, except

section 119, does not apply (

a) to an insurer, agent, adjuster or broker licensed under the Insurance Act or to the employees of any of them who are acting in the regular course of their employment, (

b) to an assignee, custodian, liquidator, receiver, trustee or other person licensed or acting under the Bankruptcy and Insolvency Act (Canada), the Companies Act, the Business Corporations Act, the Judicature Act or the Winding-up and Restructuring Act (Canada) or to a person acting under a debenture or the order of any court, or (

c) to an industry member within the meaning of the Real Estate Act or to the employees of an industry member acting in the regular course of their employment.

(2) This Part does not apply to lawyers who are acting in the practice of their profession or to a civil enforcement bailiff or civil enforcement agency while realizing on a security.

(3) This Part or any provision of this Part does not apply to any person or class of persons designated by the regulations as a person or class of persons exempt from the operation of this Part or that provision. Licence required 113(1) No person may engage in the business of a collection agency unless the person is the holder of a collection agency licence issued under this A ct.

(2) No person may act as a collector for a collection agency unless the person is the holder of a collector’s licence issued under this A ct.

(3) No collection agency may employ or authorize any person to be a collector unless that person is the holder of a collector’s licence.

(4) No person may claim or advertise that the person is a collector or carries on the business of a collection agency unless the person holds a collector’s licence or a collection agency licence, as the case may be. 67

S uspension and ca n ce lla tio n of licence 114 The licence of a collector (

a) is cancelled when the person who holds the licence ceases to be employed or authorized by a collection agency to act as a collector, and (

b) is suspended or cancelled, as the case may be, on the suspension or cancellation of the collection agency licence of the collection agency that employed or authorized the person to act as a collector. R eceipts 115 Every collection agency must acknowledge the receipt of any money that the collection agency or the agency’s collector or the employee of either of them collects or receives from a debtor for distribution to the debtor’s creditors by means of receipts that meet the requirements of the regulations.

S tatem ent o f account 116(1) Every collection agency must, on the written request of a debtor, provide to the debtor a statement of account that shows the amounts received and paid out by the agency in respect of the debtor and the amount owing by the debtor at the date of the statement.

(2) A collection agency does not have to provide the statement of account more frequently than once every 6 months. A udit 117(1) A collection agency must (

a) within 120 days after the end of its fiscal year, provide the Director with a report of its financial affairs in the form established by the Director and signed by an auditor acceptable to the Director, and (

b) provide the auditor with access to every book and record of the collection agency that, in the opinion of the auditor, is necessary to carry out the examination.

(2) The Director may order a collection agency to correct, within a specified time, any defect or deficiency in the form or maintenance of any book or record. P ro h ib ite d practices 118(1) No collection agency or collector may (

a) collect or attempt to collect money for a creditor except on the belief in good faith that the money is due and owing by the debtor to the creditor; 68

(

b) charge any fee to a person for whom the collection agency or collector acts in addition to those fees provided for in the agreement with that person; (

c) if a collection agency, carry on the business of a collection agency in a name other than the name in which it is licensed, or invite the public to deal anywhere other than at a place authorized by the licence; (

d) if a collector, collect or attempt to collect a debt without using the name as shown on the collector’s licence and the name of the collection agency that employs or authorizes the person to act as a collector, as that collection agency’s name is shown on the collection agency licence; (

e) collect from a debtor any amount greater than that prescribed by the regulations for acting for the debtor in making arrangements or negotiating with the debtor’s creditors on behalf of the debtor or receiving money from the debtor for distribution to the debtor’s creditors; (

f) make any arrangement with a debtor to accept a sum of money that is less than the amount of the balance due and owing to a creditor as full and final settlement without the prior written approval of the creditor; (

g) fail to provide any person for whom the collection agency or collector acts with a written report on the status of that person’s account in accordance with the regulations; (

h) make any personal call or telephone call for the purpose of demanding payment of a debt on any day except between 7 a.m. and 10 p.m; (

i) directly or indirectly threaten or state an intention to proceed with any action for which the collection agency or the collector does not have lawful authority; (

j) make telephone calls or personal calls of such nature or w

Document details

Collection	Alberta — Bills
Citation	L24 S2 973
Type	bill
Volume / chapter	L24 S2 973
Language	en
Format	json
Source	PROVINCIAL
Identifier	a5f18f1ee589a3bc83acaf192fdec55d3c4b2b92

Source file is stored in the law ingest library (json).